Clark & McCall 2011 FamCAFC 194

A mother left the father when the child was aged 6 months and moved to a distant location overseas (relocate).  The parents disputed residence of the child.  When the child was aged 5 years a judge changed final orders so that the child live with the father, and the mother appealed.  Evidence was received from two simultaneous experts.

The mother noted that the father was an untested primary carer for a child.  No evidence was presented that the father was unable to meet the needs of the child (burden of proof).

A family consultant expressed concern about whether the mother would truly embrace the idea that the father was really significant to the child, and would support a positive and meaningful relationship with the father.  The family consultant reported that while the child’s primary attachment was to the mother, the child could cope adequately with a change in residence and could communicate with the mother by webcam.

A second family consultant who had not seen the child or mother expressed an opinion that a reversal of the child’s residence would certainly produce attachment trauma for the child.  The first family consultant expressed the opinion that a reversal of residence would breach the child’s primary attachment.

The judge noted several indicators that the mother would not promote the child’s ongoing positive and meaningful relationship with the father including: the mother omitted to put the father’s name on the birth certificate, the mother asked the father to stay out of their lives, the mother re-located without the father’s knowledge, and the mother permitted the child to call her new partner Dada (name for stepparent).  The judge considered that the mother will subtly undermine the father’s parenting authority and importance in the eyes of the child (parenting style undermining).

The judge reversed the previous orders to give residence to the father.

Sibling Separation

A mother had formed a new relationship and was pregnant to her new partner.  A judge awarded residence of the boy aged 6 years to the father.  The mother appealed with one ground being to not separate siblings.  The judge found that separating a child from a mother who is pregnant to a new partner requires careful consideration as sibling bonds usually last for a lifetime.

The judge granted residence to the father after the mother stated she would move to another country to be with her new partner, as the mother’s decision would result in separation of the siblings.